an open-source thought experiment in psychedelic law and policy

Bloomberg and Brennan come out against NY medical marijuana law

As discussed in my post from this past Saturday, New York City Special Narcotics Prosecutor, Bridget Brennan, has publicly stated opposition to the proposed medical marijuana bill now pending in the New York State legislature.

I wondered if Brennan’s position represents an authentic statement of New York City’s position on the bill. Apparently it does: as I read it, Mayor Michael Bloomberg’s denunciation of the medical marijuana bill on Friday announced an open campaign against the bill by the massive government apparatus called The City of New York – and opened the door to Brennan’s statement.

Bloomberg’s statements on Friday, June 18 categorically denounced the idea of medical marijuana. Like Brennan, Bloomberg completely misconstrued the proposed law to a degree indicating either actual ignorance or willful ignorance of the law’s provisions and proposed operation.

Elements of the City’s ArgumentLet’s call them the “City .” The City has opposed the bill on the following grounds, according to news reports [I hope to obtain official versions of the alleged statements]:

A. Brennan:1. Dispensaries cause crime [public safety concerns: crime, quality of life, nuisance]2. The marijuana could be laced [public health argument: product purity]3. There should be a requirement that physicians actually examine the patients [delegitimization of the healthcare sector: impugning the integrity of health care practitioners]

B. Bloomberg4. California’s experience has not been good [suggests a quantitative/qualitative analysis of data available for review and challenge]5. Medical marijuana is a fraud: it is simply a decoy – the Trojan Horse, if you will – for legalization [overt adoption of ideological position]6. If you want to debate legalization, then debate legalization [the only socially productive statement by the City, but disingenuous in context]7. This is not really about medicine [see number 5 above]8. Marijuana is more potent these days [another public health argument: suggesting deference to healthcare professionals but actually adopting federal police reasoning for continuing cannabis prohibition; in context, deference to federal rationale implies wholesale, uncritical acceptance of the entire federal position – needs investigation] 9. It may lead to use of harder drugs [gateway/addiction theory – see number 8, above]10. “I think it’s a terrible idea” [overt adoption of IDEOLOGICAL OPPOSITION to THE IDEA that there could be a therapeutic use of cannabis in its entirety]

There is one fundamental flaw in the City’s analysis: it has no idea what the bill provides. Since it has no idea what the bill provides, it cannot assess the utility of referring to the experience of California, another state with another law and another history, to the possible consequences of the proposed New York law.

The bill, essentially, requires state licensing of the supply-side of the marijuana market prior to anyone entering that market.The bill assigns authority to the State Department of Health to administer the statute. The Department of Health. Not the Attorney General. Not a police commissioner. Not a municipal prosecutor of major drug trafficking crimes. Not the mayor of a city, no matter how large or influential. What the City is saying, without saying it, in bureaucratic language, is that the City considers the State Department of Health to be incompetent and unable to administer the statute properly.

Fundamentally, the task at hand is to assign regulatory authority over psychoactive substances to administrative agencies other than the police. That’s what this bill would do with regard to certain uses of marijuana. The Department of Health will have discretion to register an applicant for patient status (i.e. by issuing a registry identification care – basically a license to buy, possess, and use cannabis) or deny the application. The Department of State will grant or deny applications for registration by prospective suppliers. Everyone must be registered by the state before entering the market. Is this part of the scheme what’s bothering Mike Bloomberg? Excessive market regulation?

The New York statute differs qualitatively from the California model

The proposed New York bill is part of a major evolution in the history of state medical marijuana laws. I call the regulatory systems that have emerged in this evolution “second generation” laws. First generation laws, the type of law that appeared in California in 1996 and in Colorado in 2000 (and in most of the other “medical marijuana” states), protect patients, more or less. The first generation model does not even purport to govern the supply side. In California and Colorado, dispensaries just sprout like mushrooms after a rain: they open up for business at will, since they are unregulated, leaving the cities to chase after them and try to shut them down one by one or ban them categorically within the city limits.

The second generation laws channel all power through the state executive branch – the medical bureaucracy. This branch of the bureaucracy licenses the participants in the supply side and the demand side of the market.

Neither Brennan nor Bloomberg indicated any familiarity with the principles which I describe above. They didn’t even offer a shred of evidence to support their positions, to the extent that any of them are factual. While Brennan stayed objective in her posture, Bloomberg simply stated his personal, uninformed belief that the entire concept of medical marijuana is a bad idea.He did suggest that we debate legalization. If he wants that debate he should first acquire a fundamental understanding of how drug control works.

The State of New York endorsed medical marijuana thirty years ago.

The irony is that New York was one of the national pioneers in medical marijuana. New York State enacted a medical marijuana program back in 1980 under the guidance of State Senator Antonio G. Olivieri. Article 33-A of the New York State Public Health Law provides for a medical marijuana program operated by the Department of Health. Under the program: 1. The Department of Health administers the program as a “research program” through hospitals2. Participation is limited to cancer patients, glaucoma patients, and “patients afflicted with other diseases as such diseases are approved by the commissioner,” i.e., the Health Commissioner has discretion to determine what other medical uses marijuana might have.3. Patient qualification review boards evaluate patient applications for participation in the program.4. The statute does not create a mechanism for supplying the marijuana.5. The statute requires that the Department of Health apply to the federal Food and Drug Administration for approval of the program (i.e., that the Commissioner submit an Investigative New Drug application).

Of course, the Olivieri Medical Marijuana Law that sits in the statute book differs dramatically from the current statutes in place around the United States, including New Jersey, and the one proposed for New York. It was enacted sixteen years prior to Proposition 215, the California voter initiative that constituted a populist uprising against federal marijuana prohibition. (Proposition 215 was the breakthrough that opened the door to medical marijuana statutes everywhere; it created a defense for patients but not for distributors, and that is the model for completely unregulated entry into the market by suppliers in the majority of medical marijuana states).

“The legislature finds that recent research has shown that the use of marijuana may alleviate the nausea and ill-effects of cancer chemotherapy, may alleviate the ill-effects of glaucoma and may have other therapeutic uses. The legislature further finds that there is a need for further research and experimentation with regard to the use of marijuana for therapeutic purposes under strictly controlled circumstances. It is for such research programs that controlled substances therapeutic research act is hereby enacted.”

In other words, the State of New York is on record with the position that marijuana can have therapeutic uses; the practical question is how to make it available.

To repeat, existing New York state law provides for a “research program” in which cancer patients, glaucoma patients, and other patients which the Department approves will receive marijuana from a hospital. That law is a dead letter, and I am willing to venture that it was doomed for failure from conception because (a) it attempted to enlist hospitals as the distribution mechanism and (b) it required an interface with the federal government. Involving the federal government is obviously the kiss of death for any medical marijuana program or initiative since the immense bureaucracy called the “United States Government” does not recognize any use of marijuana whatsoever by anyone for any purpose – upon pain of criminal penalty. The effective state laws therefore disregard the federal government entirely; they do not recognize federal regulation of this field except to try to avoid overt conflicts with federal law where possible.

(Incidentally, I presume that the foregoing inherent problem with operating through hospitals is the reason why New Jersey Governor Chris Christie proposed that NJ’s medical marijuana program be operated exclusively through hospitals – that requirement should functionally kill the law or at least delay any implementation of the law any time soon.)

The burden of proof is upon the City of New York to explain its opposition to the proposed medical marijuana law. Possible means of succeeding in its argument are (a) reading the law and/or (b) presenting factual evidence in support of its claims. The burden of proof is particularly heavy since the State of New York endorsed the utility of conducting a medical marijuana distribution (“research”) program thirty years ago. Perhaps the City would be most helpful in stating affirmatively what type of medical marijuana market it would prefer to see operate within the city limits.